Florida Supreme Court Justice Jorge Labarga said he did not know how much unfinished business, if any, Justice James E.C. Perry left when his overtime work serving as a retired justice ended Jan. 31 but one case that is left unsettled is the Gretna Racing, LLC v. Florida Department of Business and Professional Regulation. The case could determine the fate of slot machine gambling in Florida.
Labarga appointed Perry to serve as a senior justice of the Florida Supreme Court through Sept. 30, 2018 but, after Gov. Rick Scott had appointed Perry's replacement, Justice C. Alan Lawson. Labarga amended his order on Jan. 11, ending Perry's term Jan. 31.
In the meantime, House Speaker Richard Corcoran threatened to sue, suggesting that Perry was serving as an unconstitutional "eighth justice."
Labarga said that he did not learn of Corcoran's threat to sue until he read it in the paper. "This is the way it's been done and no one has ever questioned it,'' he said. "I don't see a problem with it. We're done with Justice Perry and we're moving on."
So now what happens to cases like the Gretna ruling on which the court, including Perry, hear oral arguments last June but which has not yet been released? The court must decide of the Florida Legislature intended to allow counties to expand slot machines anywhere in the state in 2010 when it modified a statute that was initially intended to allow Hialeah Park to operate slot machines.
"I haven't thought about that yet,'' Labarga said Monday in response to question from the Herald/Times. "I'm pretty sure most of those questions are done and whatever he signed will be released soon. As far as new cases that are going to be heard -- tomorrow and from here on, that will be Justice Lawson."
Labarga responded that there are "going to be some" cases from Perry "that he voted on -- but I'm not sure."
Court spokesman Craig Waters, however, later clarified that Perry's rulings have all been issued and "he's done."
Justice Peggy Quince has recused herself in the Gretna case because her son works at DBPR so Perry's absence could make a difference in the final vote on the high profile case.
If Perry has written his ruling but it is now being jettisoned because his retirement was cut short, what happens next?
If Perry's ruling had resulted in a 3-3 split, the court could ask Lawson to break the tie, Waters said.
As with any tie, the court could also call for a rehearing of the issue, or Lawson could review the arguments in the file and the videotape of the oral arguments and then render an opinion.
"But that's not something you're going to know until the ruling is released,'' Waters said.
Labarga told reporters that his appointment of Perry to stay on was done "in the custom of this court throughout the ages to allow justices who are about the retire to finish their work."
He noted that appellate work is not like trial work where you start hearings but instead requires reading lengthy records and "it's a very time consuming thing."
"So it's preferable for Justice Perry to finish his opinion, on things he had voted on, and that we move on,'' he said.
"I believed by the 31st, given the fact we got a new justice, he could finish his work and move on to his retirement,'' Labarga told reporters Monday.